Opinion
No. 05-02-01156-CV
Opinion issued June 30, 2003
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-46836-UVKVW
AFFIRMED
MEMORANDUM OPINION
David's Bail Bonds appeals the trial court's denial of its special bill of review filed under article 22.17 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 22.17 (Vernon 1989). In a single issue, appellant complains the trial judge abused her discretion in denying its special bill of review because, on the date the defendant in the underlying criminal case was scheduled to be in court, (i) defendant's counsel told her to leave the courthouse before she made her appearance and (ii) the trial judge failed to order the defendant into custody after being informed of her presence. We affirm the trial court's order denying the special bill of review.
The facts of the underlying case are well known to the parties and are not recited in detail here. Appellant filed this special bill of review requesting that the trial judge set aside the judgment of bond forfeiture against it. See Tex. Code Crim. Proc. Ann. art. 22.17. Under article 22.17, a surety may file a special bill of review, including a request, on equitable grounds, that a final judgment of bond forfeiture be reformed and that all or part of the bond amount be remitted to the surety. Tex. Code Crim. Proc. Ann. art. 22.17. The decision to grant or deny relief is entirely within the discretion of the trial judge. Tex. Code Crim. Proc. Ann. art. 22.17(a).
In determining whether the trial judge abused her discretion, an appellate court must determine if the judge acted without reference to any guiding rules and principles, or, in other words, whether the court acted arbitrarily or unreasonably. Makeig v. State, 802 S.W.2d 59, 62 (Tex.App.-Amarillo 1990), opinion adopted, 830 S.W.2d 956 (Tex.Crim.App. 1992) (per curiam). An abuse of discretion may exist when there is a showing of sufficient cause for the accused's failure to appear in court. Makeig, 802 S.W.2d at 62. Sufficient cause is generally a showing that the defendant did not break her recognizance intentionally with the design of evading justice, or without sufficient cause or reasonable excuse, such as unavoidable accident or inevitable necessity preventing her appearance. Makeig, 802 S.W.2d at 62-63.
In reviewing the denial of appellant's bill of review, we must first consider the facts that were before the trial judge to determine whether an abuse of discretion occurred. Appellant argues that its representatives obtained the defendant's presence in court on the date scheduled and her attorney told her to leave before her case was called. Further, appellant argues its representative told the court coordinator that the defendant was present and the "court" should have taken her into custody at that time. Appellant argues these circumstances are equitable considerations requiring the trial judge to grant its bill of review and that the failure to do so was an abuse of discretion. The record does not contain a reporter's record in this appeal, and it appears that a court reporter was not present to record testimony during the hearing on appellant's bill of review. In the absence of a reporter's record, we indulge every presumption in favor of the trial court's findings. Bryant v. United Shortline Inc. Assurance Servs. N.A., 972 S.W.2d 26, 31 (Tex. 1998); see Foust v. Estate of Walters, 21 S.W.3d 495, 504 (Tex.App.-San Antonio 2000, pet. denied) (in absence of deposition transcript, appellate court must indulge every presumption in favor of trial court's decision; burden is on party seeking review to see that sufficient record is presented to show error). We presume the evidence supports the trial court's order and the trial judge did not abuse her discretion in entering the order. See Favaloro v. Comm'n for Lawyer Discipline, 994 S.W.2d 815, 821 (Tex.App.-Dallas 1999, pet. denied). By failing to present a reporter's record of the bill of review hearing, appellant has waived any complaint that the trial judge abused her discretion in denying the bill of review.
In its brief, appellant refers to docket notations in the clerk's record in support of the "facts" it claims show the trial judge abused her discretion in denying appellant's bill of review. Docket notations are not a substitute for a reporter's record and cannot be considered on appeal. See Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex. 1995) (docket entry does not constitute written order); Roever v. Roever, 824 S.W.2d 674, 676 (Tex.App.-Dallas 1992, no writ) ("A docket entry forms no part of the record which may be considered; it is a memorandum made for the trial court and clerk's convenience.") (citing Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex.App.-Dallas 1986, no writ)).
In addition, appellant argues that by informing the court coordinator of the defendant's presence in court, it discharged its duty as a surety under article 17.16 of the Texas Code of Criminal Procedure. Article 17.16 provides that a surety may relieve itself of its undertaking by surrendering the accused into the custody of the sheriff of the county where the prosecution is pending. Tex. Code Crim. Proc. Ann. Art. 17.16 (Vernon Supp. 2003). Even if we were to assume that a court coordinator is the same as a sheriff for the purposes of article 17.16, there is no evidence before us that appellant surrendered the defendant to anyone. For these reasons, we overrule appellant's single issue. We affirm the trial court's order denying appellant's special bill of review.